As the joint project progressed, Stevens was amazed at Burger's brooding acquiescence to their work. If he were Chief, Stevens concluded, he would not abdicate the most important cases of the term.
The troika finally began stitching the various sections into appropriate places in all five opinions. Powell realized that the opinions read like a committee project, but he thought they were the best they could do. Stewart liked the committee approach. Points of view were expanded; the work and responsibility had been shared. Considering that they had spent just two months, Stewart felt they had done
a
good job.
Brennan's clerks wanted him to turn them loose to point out the logical inconsistencies in the troika's opinions, but this time Brennan said no. Rehnquist would handle that by attacking from the other side. Brennan wanted to keep his colleagues focused on the moral issue of killing people; that was what had been won in
1972
and was now lost. "Justice of this kind is obviously no less shocking than the crime itself," he wrote, "and the new 'official' murder, far from offering redress for the offense committed against society, adds instead a second defilement to the first." But the dissent had no effect on the outcome of the case.
After leaving his vote in doubt for months, Blackmun finally said he would not join the troika; he would vote to uphold all five state laws along with Burger, White and Rehnquist.
It was agreed that the plurality of three should announce the judgments. Friday, July
2,
was set as the day. The troika produced
112
printed pages of opinions upholding three laws and striking two. The other six Justices added
93
pages of dissents and concurrences. Since there was no one majority opinion, the Chief suggested he should read his opinion first. The others insisted the troika go first. The Chief yielded.
On the morning of the announcement, the Justices were solemn and quiet in the robing room. A heavy cloud cover outside darkened the courtroom. Stewart's hand shook, and his voice cracked, as he read the lead case, Georgia, upholding the death penalty. Marshall delivered an angry, emotional dissent. The Justices were absolutely silent as they left the bench. Drained and discouraged, Marshall went home early. That night he had a mild heart attack.
The next day, the newspaper stories called attention to the fact that the decisions set the stage for the execution of about half of the
600
people on death row—all those who had been sentenced under discretionary laws.
The New York Times
predicted that it would probably be several months before an execution took place. "But the judgment today means that the main legal battle is over."
Two weeks after the announcement, Amsterdam filed
a
petition for rehearing in the three cases that were upheld. Since the Court was in recess, the petition was forwarded to Powell, the circuit Justice for these states. Executions could begin at the end of the month, unless Powell granted
a
temporary stay until the Court could meet to consider the petition.
Powell did not want the first blood on his hands; he was inclined to grant the stay. When Burger learned of Powell's intention, he tried to persuade him to deny. This was the kind of stalling and use of technical loopholes that was fouling up the law, Burger argued. Another delay would be interpreted as a last-minute shift by Powell, perhaps by the whole Court. There would be more doubt.
Powell told Burger that he could not act for the full Court. If any person were executed before the Court reconvened, he would have been denied his fair chance for a rehearing, no matter how unlikely it was that it would be granted.
Burger replied that if Powell granted the stay, he would have no alternative but to reconvene the Court in a special session to overturn the stay, and deny the petition for rehearing.* They both knew that a majority would do just that
Powell called Brennan in Nantucket, and told
ftlm
about Burger's threat. Brennan reminded Powell that the Chief had no power over him when he was acting as circuit Justice. Brennan suggested that Powell show some "backbone."
If Powell granted the stay, Brennan said, and Burger tried to summon all of them back, Brennan would not come. If Burger persisted, Brennan said he would write a full dissent from any action the Court took spelling out what happened in detail.
On July
22,
Powell granted the stay. Burger did not summon the Court back into session.**
The chaos of his first half-term gave Stevens reason to pause. At conferences the Chief read verbatim from clerks' memos and tried to avoid committing himself to a position
* The last time the Court had been convened in the summer to expedite an execution had been in
1953,
when the Court overturned Douglas's order blocking the executions of convicted spies Julius and Ethel Rosenberg.
**
In one of the first actions of the new term the next October, the Court issued a short order denying the petition for rehearing. There was not a single dissent. The states were technically free to begin executions. But Amsterdam and the lawyers for the Inc. Fund continued to fight each individual death sentence, and to file every conceivable motion in the federal courts to block them. They were successful in every case except that of convicted murderer Gary Gilmore, who asked the state of Utah in January
1977
to carry out his death sentence. He was executed by a firing squad. Involuntary executions began on May
25, 1979,
at
10:12
a.m
. with the electrocution of John A. Spenkelink, whose sentence had been stayed since the Court's
1972
decision declaring the death penalty unconstitutional.
until the last minute. Brennan's bitterness at the direction of the Court's decisions made him a voice crying in the wilderness. It was sad. Stevens liked Brennan personally, but Brennan gave knee-jerk liberal reactions. Stewart was hard-working but distracted. Marshall parroted Brennan. Blackmun was tormented and indecisive, searching for a way to duck issues or narrow the final opinion as much as possible. Rehnquist was clearly very intelligent and hardworking but too right wing. His willingness to bend previous decisions to purposes for which they were never intended was surprising, but Stevens also liked Rehnquist. Powell seemed the most thoughtful, the best prepared, and the least doctrinaire. White was the most willing to discuss an issue informally before it was resolved, but he could become unnervingly harsh.
The absence of intellectual content or meaningful discussion at conference was the most depressing fact of Court life. Stevens thought that the nation's highest Court picked its way carelessly through the cases it selected. There was too little time for careful reflection. The lack of interest, of imagination and of open-mindedness was disquieting.
By the end of the term, Stevens was accustomed to watching his colleagues make pragmatic rather than principled decisions—shading the facts, twisting the law, warping logic to reconcile the unreconcilable. Though it was not at all what he had anticipated, it was the reality. What Stevens could not accept, however, was the absence of real deliberation. Under the extreme pressures created by Stevens's arrival in the middle of the term, internal animosities that had been growing surfaced more openly and more regularly.
On Sunday, June
20,
Washington Star
reporter Lyle Denniston wrote a front-page story that was headlined "Supreme Court Is a Different Place Without Douglas." The story related how Douglas's former colleagues, even those who had disagreed with him, missed his outspokenness. Though Denniston did not name them in the story, two Justices had talked to him about the impact of Douglas's departure on Brennan and Marshall. One Justice was quoted as saying that the two remaining members of the liberal wing were "beleaguered." The other was quoted as saying that Brennan and Marshall were aware of their declining importance, and were reacting to their isolation with more strident dissents. The result, one Justice said, was that the majority felt less obliged to respond to the Brennan-Marshall dissents. "You don't go around chasing rabbits," one Justice was quoted as saying. "You don't need to answer every flag they run up."
A few days later at the end-of-the-year status conference to determine which cases were ready to be announced, one of Powell's Fourth Amendment cases came up for discussion.
"I'm ready," Powell said, "but I don't know if Bill Brennan is ready. He may have more dissenting to do."
"Well," Brennan said, "if the story in
The Star
on Sunday is correct, I don't know why you even have to ask me. I take it you don't feel you have to read my dissents or respond to them anyway." · "You don't believe that, Bill," Powell said.
Several of the others tried to calm Brennan, but Brennan answered them sharply. "Two of the brethren are quoted."
"You don't believe what you read in the papers, do you?" White asked.
Stevens said that he too wondered about the direct quotations attributed to unnamed Justices. Nearly everyone jumped in, voicing views about the article, the press, dissents, Douglas's retirement and its meaning. The discussion continued for some time.
Only Stewart and Rehnquist remained silent.
Brennan later toned down his dissent in Powell's case. It was one of the few that he softened, and it was still strong. It accused the majority of deception, charging that they had overruled the
1969
Warren Court case without saying so. The majority's action, he said, was "drastic," was "novel," foreshadows "future eviscerations," and amounts to a "denigration of constitutional guarantees." He pointedly retained a citation to a
1971
Yale Law Journal
article entitled, "Some Anxious Observations on the Candor and Logic of the Emerging Nixon Majority."
Five separate Fourth Amendment cases were announced on July
6,
the last day of the term. All five ruled against citizens' rights and in favor of the government. One case
(U.S.
v.
Martinez-Fuerte)
authorized the border patrol to stop cars at fixed checkpoints miles away from borders and without probable cause. Brennan, dissenting for himself
and Marshall, listed it as one of nine such cases in the "continuing evisceration of the Fourth Amendment" during the term.
Because of the five cases announced on the last day, the clerks in most chambers began calling it "Black Tuesday." But if it was "black" and ran contrary to their liberal views, this turning away from the Warren Court was orchestrated and controlled not by Warren Burger, but by Stewart and White, who had served on the Warren Court, Powell, the most moderate of the four Nixon appointees, and by Stevens, the new moderate.
The center was in control.
Index
abortion cases,
193-207,
215-223,
258,
271-84,
491-93
federal jurisdiction issue,
193-99
passim,
207
Adams, Arlin
M.,
475
Adicke&v. S.H. Kress & Co.,
69
affirmative action,
333
Agnew, Spiro,
9,
83,
357/1.
Aikens
v.
California,
243/1., 251
Air Force, sex discrimination,
301-02
Alexander v. Holmes County Board of Education,
36-60,
107
Alexander v. Louisiana,
200
Alexander
v.
Virginia,
24m.
Alexandria Scrap Co.
v.
Hughes,
477-78
Ali, Muhammad,
157-60,174
aliens
admission to bar,
303-05
border searches,
307-08,
433.
454-55.
527-28
federal jobs,
477
Almeida-Sanchez v. U.S.,
307,
454
Amalgamated Food Employees Union
v.
Logan Valley Plaza,
210,
213
American Bar Association,
7,
21,
35,
36,
74,
174,
185-
191
passim,
475
American Civil Liberties